Date:
20131002
Docket:
T-1568-12
Citation:
2013 FC 1005
Ottawa, Ontario,
October 2, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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PARWINDER SADANA
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Applicant
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and
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MINISTER OF PUBLIC SAFETY
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Martin Belanger, the
Assistant Manager, Policy Section of the Recourse Directorate of the Canadian
Border Services Agency [CBSA], on behalf of the Minister of Public Safety and
Emergency Preparedness [the Minister], pursuant to section 18.1 of the Federal
Courts Act, RSC 1985, c F-7. The Minister upheld the decision to cancel the
Applicant’s NEXUS membership in a letter dated August 29, 2012. The Respondent
also seeks to correct the style of cause to name the Respondent as the Canada (Minister of Public Safety and Emergency Preparedness).
I. Background
[2]
The
Applicant was a member of the NEXUS program, and entered Canada through Vancouver International Airport via a flight from Thailand on March 7, 2011. He
carried exactly $10,000 Canadian in his carry-on luggage.
[3]
The
Applicant did not declare in his E311 Customs Declaration Form that he was
bringing $10,000 or more into Canada as required by section 12(1) of the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 [the
Act] and the applicable regulations.
[4]
According
to the Respondent, a Border Security Officer approached the Applicant and
directed him to a routine customs examination where the $10,000 was found. The
Applicant explained that he did not believe he was required to declare the
currency and that he had not read the customs declaration form. The Applicant’s
NEXUS card was seized and he was fined $250.
[5]
The
Applicant appealed the sanctions against him in a letter sent on March 11,
2011. On March 17, 2011, the CBSA informed the Applicant that his NEXUS
authorization had been cancelled and that this decision had been referred to
the Redress Committee for the CBSA Pacific Region.
[6]
Following
various reviews of the decision, all of which upheld the initial sanctions, two
final letters were sent by the CBSA. The first was sent on July 6, 2012, by
J.M. Dupuis, a manager at the Appeals Division of the Recourse Directorate [the
Enforcement Decision]. Of relevance to this decision is that it confirmed that
the Applicant contravened section 12(1) of the Act. This decision was made
pursuant to 27(1) of the Act.
[7]
A
second letter was sent to the Applicant on August 29, 2012, from the Minister,
confirming that his NEXUS cancellation was being upheld. This decision forms
the basis of this judicial review.
[8]
This
letter cites section 22(1)(a) of the Presentation of Persons (2003)
Regulations, SOR/2003-323 [the Regulations], which stipulates that the Minister
may cancel a NEXUS authorization if a person no longer meets the eligibility
requirements of the program. In this case, the Minister concluded that the
Applicant was no longer a person of “good character” within the meaning of
section 6(b) of the Regulations, owing to his contravention of section 12(1) of
the Act. The Minister described the “good character” requirement as follows:
When defining the term “good character” for purposes
of the CBSA’s trusted traveler programs, applicants are assessed as to whether
they may pose a risk to the security of the programs. In doing so, an
evaluation takes place of factors such as whether there has been a serious
infraction of the laws of Canada and, in particular, the laws administered by
the CBSA which undermines the confidence of the CBSA that the applicant will
comply with all the program requirements.
Membership in any trusted traveler program is a
privilege granted to travelers who meet the eligibility requirements both at
the application stage and during the course of their membership in the program.
II. Issue
[9]
The
issue raised in the present application is as follows:
A. Was
the Minister’s decision to cancel the Applicant’s NEXUS authorization on the
basis of his contravention of section 12(1) of the Act unreasonable?
III. Standard of review
[10]
The
Applicant does not make submissions on the standard of review. The standard of
review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47; Sellathurai v Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FCA 255 at para 51).
IV. Analysis
[11]
As
part of his argument, the Applicant contests the Minister’s decision, under
section 27 of the Act that he contravened section 12(1) of the Act. However,
the Applicant has not appealed the Minister’s decision under section 27 of the Act
pursuant to the prescribed process to do so. Judicial review is not the proper
process for this complaint.
[12]
The
Applicant blames ongoing emotional distress for his failure to read the E311
Customs Declaration Form in detail and declare the $10,000 cash he had in his
possession. He also states that he mentioned the $10,000 to another CBSA
officer prior to its discovery, but could not get a videotape of the discussion
because it had been deleted. Lastly, he submits it would not make sense to
illegally bring $10,000 into Canada if he could have brought $9,999 legally.
[13]
While
the Applicant’s submissions have some appeal, a traveller’s subjective
intention is irrelevant when failing to report currency or goods (Zeid v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 539 at paras 36,
55).
[14]
In
considering the “good character” requirement under section 6(b) of the
Regulations, the compelling public policy interest in upholding the integrity
of the legislative and policy objectives of the Act must be considered together
with the need to ensure domestic and international confidence in the NEXUS
program.
[15]
While
I have some sympathy for the Applicant’s position in that his non-declaration
of the $10,000 is a relatively minor offence, based on the evidence before the
CBSA Headquarters Redress Committee, the decision to revoke the Applicant’s
NEXUS card was reasonable.
[16]
The
Application is dismissed.
[17]
I
have determined that given the facts in this matter, no costs shall be awarded.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
Application is dismissed;
2.
The
style of cause be and it is hereby amended to replace the name of the Respondent
Minister of Public Safety with Canada (Minister of Public Safety and Emergency
Preparedness);
3.
No
costs are awarded.
"Michael D.
Manson"
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